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A Minimum of Charity

Katharine Fletcher

Alongside cutting crime, hospital waiting-lists and taxes, cutting the number of asylum seekers can be depended on to rank high among pre-election promises. This year, the Tories’ cap on refugee numbers has jousted with the home secretary’s proposals to remove the right of recognised refugees to remain in Britain unconditionally, to lock up more asylum seekers while their claims are considered, and to allow the return of unaccompanied children to their countries of origin.

In 2003, 180,000 people, with their dependants, entered Britain to work, 319,000 came to study, and 49,000 claimed asylum. Last year, 33,930 people claimed asylum (full immigration statistics for 2004 are not yet available). Proportionate to other immigrants, asylum seekers are a small group. But theirs is, as it has been for a long time, the most politically provocative immigrant category by far.

The 1951 UN Convention on Refugees imposes a legal duty on states not to ‘expel or return a refugee … to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’. This means that asylum cannot be subject to the same state control as other kinds of immigration. Short of following the legally fraught Tory route of seceding from the convention, no government can get the numbers down if the numbers of those who fit the terms of the UN Convention are not diminishing. This in part accounts for the obsessive hold asylum has on the imagination of a press and a public wary of immigration.

The usual government strategy for dealing with the tension between international obligation and public unease has been to accept the terms of the media discussion. Hence the endless talk of ‘abusive’ applicants and the endless promises of clampdowns: the only way to be seen to be bringing the numbers down without being seen to be sending refugees back into danger is to assert that asylum seekers in general are lying.

As a political strategy this is self-defeating, because, to be effective, it relies on the impossibility of satisfying the public’s appetite for crackdowns: the more the government tells people that the great majority of those seeking asylum do not need it, the more asylum seekers it will be expected to remove or prevent from arriving, and thus the more work it will give itself which it cannot complete in a way that satisfies both international law and public opinion. This is one reason why three major asylum acts have been passed in six years.

For most asylum seekers, the difficulties begin on arrival. Ibrahimi is a 29-year-old Kurd from Iran. He is stocky, with dyed blond hair which is gelled and styled, and a small beard. I met him at the Refugee Council in Brixton, where he does drawings for the charity’s campaign leaflets. He talked quietly and rather shyly through an interpreter. He told me that he came to the UK from Iran hidden in a succession of lorries. He paid a number of agents to organise his passage. He was dropped off in a street in South London in April 2003 and told to tell a policeman he was seeking asylum. He walked around, exhausted and dazed – he hadn’t eaten for three days – and tried to find out from passers-by where to go to ‘ask asylum’. Someone told him how to get to Lunar House, the Immigration Service’s main office, in Croydon. He made his way there on foot, arriving three or four hours after he had been dropped off. He had two interviews at Lunar House: one to take down the basic details of his asylum claim, the other to determine his eligibility for subsistence support from the National Asylum Support Service (NASS).

He then spent three months in emergency accommodation awaiting a decision on whether he would be allowed the 70 per cent of Income Support that NASS offers. Eventually, the decision came: a refusal under Section 55 of the Nationality, Immigration and Asylum Act 2002. ‘The Home Office didn’t believe I had come to UK that day, they thought I had been here longer,’ Ibrahimi said. ‘I did not know I should claim asylum immediately. I couldn’t find where to go … they didn’t believe me.’

Section 55 had come into force on 8 January 2003: asylum seekers who did not apply for asylum ‘as soon as is reasonably practicable’ after arriving in the country would no longer be entitled to food and shelter. In 2003, 9410 people were told they were ineligible for NASS support because they had failed to claim asylum ‘as soon as is reasonably practicable’. Many of these decisions were challenged, and in 67 per cent of the cases submitted for reconsideration by the Inter-Agency Partnership, a group of charities, the initial refusal was judged to have been wrong.

When Ibrahimi received his letter refusing support, the staff at the emergency shelter where he had been staying told him he had to leave. His solicitor said there was nothing to be done. ‘I slept for two nights outside, my solicitor gave me money and a blanket. I slept in a train station and a park.’ Another solicitor, found for him by the Refugee Council, put in for an injunction against the decision to refuse support. It failed, and Ibrahimi was once again on the streets, ‘for fifteen, twenty days’, until he met another Kurdish man, who let him sleep on his floor. He started going to the Refugee Council offices in Brixton because they gave him meals, blankets and clothes. Since 2002, asylum seekers have been forbidden to work, so without NASS, people like Ibrahimi have to rely on whatever charities or religious and community groups can spare.

Ibrahimi became destitute because NASS caseworkers did not believe he had arrived in the country when he said he had. People like him who entered clandestinely were frequently denied support because, in the absence of evidence, caseworkers decided not to believe that they had arrived when they said they had. Many others were refused support because, although NASS accepted that they had applied for asylum soon after arrival, it was not deemed to have been soon enough. What was intended to be a sanction against migrants claiming asylum in order to prolong illegal stays was used against people who had been in the country only a couple of days before asking to be considered as a refugee. ‘Reasonably practicable’ tended to be interpreted to mean that anyone making a claim more than one day after passing through a port of entry was too late.

There are good reasons for asylum seekers not to state their claim on entry: many fear they might be put straight back on a plane out. Others want advice from lawyers or community members before they make an application. The Home Office’s asylum statistics show that a majority of those granted refugee status are ‘in-country’ (i.e. not ‘at port’) applicants. Section 55, at least initially, operated in such a way that it penalised asylum seekers for behaving like ‘genuine’ refugees.

Reports on Section 55’s effects describe people sleeping rough in bins and phone boxes and on pavements outside charities. It was subject to legal challenges throughout 2003, most of which turned on whether the deprivation caused by denying support amounted to ‘inhuman or degrading treatment’ in terms of Article 3 of the European Convention on Human Rights. In December 2003, after a campaign by NGOs against the policy, the home secretary declared that ‘as soon as reasonably practicable’ could be defined as up to three days after arrival; but this was still unreasonable, given that new arrivals are probably anxious and ignorant of the demands of the system.

The judgment that finally disabled the policy was given in the Court of Appeal in May 2004. The court ruled that the government would have to make sure that asylum seekers had an alternative source of support before it withheld NASS money, since a failure to do so would infringe the asylum seekers’ human rights by depriving them of food and shelter. The ruling effectively killed off Section 55: in the last quarter of 2004, all applications for NASS support were granted.

It was a rare defeat for the government: other curbs on asylum seekers’ rights have been more successful. Because most refugees have to travel on false documents to escape the countries where they are persecuted and to get through border controls, Article 31 of the 1951 Convention on Refugees states that they should not be penalised for being in a potential host country illegally as long as they ‘present themselves without delay to the authorities and show good cause for their illegal entry or presence’.

But the Asylum and Immigration Act passed last year stipulates a prison sentence of up to two years for anyone who when first interviewed by an immigration officer doesn’t have any travel documents ‘without reasonable excuse’. One of the most common reasons that asylum seekers don’t have documents is that they are instructed to destroy them by the agents who bring them into the country. This is not, however, recognised as a ‘reasonable excuse’. Between September and the end of January, 172 people were arrested and charged under the provision.

The full text of this essay is only available to subscribers of the London Review of Books.

[*] Around thirty firms are still allowed to decide for themselves whether legal aid is justified. The basis for inclusion on this list isn’t entirely clear: some good firms are included, but so are others with less impressive reputations. The cap on legal aid applies to these firms too and so even they have had to reduce the work done on appeal cases.

Letters

Katharine Fletcher’s account of the ‘obstacles to seeking asylum’ in Britain is misleading in important ways and places (LRB, 17 March). We know there is torture and persecution going on in the world. We know the victims find their way to Britain – and we are proud that they see it as a place of refuge. This pride turns to shame when we think of them spending months on minimal benefits trying to convince a cynical bureaucracy of their suffering. They deserve better.

But saying they deserve better is different from saying that making it harder for them to qualify for benefits, or increasing the burden of proof, are likely to stop them applying. And yet the striking effect of these changes over the last couple of years has been not on how many claims or appeals succeed but on how many applications are made in the first place.

If the policy is taken at face value, as motivated by a genuine desire to reduce unfounded claims rather than merely to buy off the right-wing media, then rather than being ‘self-defeating’ it actually looks like a success. Moreover, rather than being a mere ‘political strategy’ it looks like a government doing what governments are obliged to do: ensure the law is applied and taxpayers’ money is going to the people who are entitled to it.

Similarly, the distinctions between bogus/ genuine or honest/dishonest asylum seekers cannot be dismissed as mere ‘media designations’. True, there are different shades of ‘dishonesty’ here. They range from, at one extreme, the pretty disgraceful practice of claiming asylum benefits in two EU states simultaneously, or claiming them in one state having been granted refugee status in another; to, at the other, the much more excusable practice of claiming asylum without benefits purely to buy some breathing space to find illegal work.

You wouldn’t guess from the right-wing media that it is the second rather than the first kind which is typical. But in trying to correct this impression we shouldn’t imply that the second kind of case is completely harmless. True, these are not bad people. At bottom they are trying to do what governments around the world exhort young people to do – seek out opportunities and work to better their lot. They are not spongers: often they don’t even apply for the benefits they are entitled to. If they don’t pay tax either, this is usually down to their employer. Overall they probably make a positive contribution to the economy, working in jobs which are hard, often dangerous and badly paid.

But their admirable motives and hard work can’t justify ignoring the fact that they are seeking an unfair advantage over those who apply to come here legally, that they are freeloading by using public services without paying taxes, and most important, that they are abusing the immigration system. Now, many who criticise asylum policy from the left would like to see that wider system relaxed. But conflating that question with the question of whether, until that happens, the current laws should be enforced, is wrong both in principle and in practice. A more sophisticated tack would be to concede that the government’s reforms are not just about stinginess or pandering to the mob but are motivated at least partly by the entirely proper desire to eliminate injustice, but then argue that the price of doing so is to create a greater injustice, that of genuine refugees being turned away.

There must be some kind of trade-off between ensuring genuine refugees are given protection, and eliminating abuse of the system. Fletcher’s case studies remind us of the individual cost of changes in policy or its application, but by their nature cannot tell us anything about the aggregate effects for which governments are rightly held responsible. We need some sense of the numbers, and here Fletcher lets us down. How, for example, are we supposed to square her claim that ‘the system is constructed on the false premise that a very large number of asylum seekers are “abusing the system”’ with her acknowledgment that ‘it is clearly the case that a proportion of asylum seekers are economic migrants.’ Are we simply meant to infer that this ‘proportion’ does not count as ‘very large’?

When she does give us numbers, too often they are out of context. She believes immigration officials are being overzealous in applying the new law against destroying travel documents and passports before claiming asylum. Fletcher cites the 170 people charged in the first four months – but fails to put this in context of the thousands who could potentially have been charged. A prosecution rate of 5 per cent is not by itself evidence that the law is being applied unreasonably. Similarly, she takes her figures on the time asylum seekers are detained – between 129 and 165 days – from the organisation Bail for Immigration Detainees, who naturally concentrate on those detained the longest. In fact, only 10 to 20 per cent of asylum seekers are detained for the kind of time Fletcher presents as typical.

Matt Cavanagh
Former Government Adviser on Asylum and Immigration, London SW1

Matt Cavanagh writes that the majority of ‘abusers’ of the asylum system are trying ‘to buy some breathing space to find illegal work’, and that ‘there must be some kind of trade-off between ensuring genuine refugees are given protection, and eliminating abuse of the system’ (Letters, 31 March). Most failed asylum-seekers are, in fact, people in need of protection, but who do not meet the stringent requirements of the UN Convention on Refugees. Many of my clients come into this category: the 21-year-old Roma woman, for instance, who claimed asylum because the systematic discrimination she suffered in her own country left her unemployed, marginalised and frightened to walk down the street; or the woman from Sierra Leone who watched her four-year-old daughter bleed to death after her hands had been chopped off, and wanted to work to take her mind off the memory. The former was refused asylum because the discrimination she had suffered did not reach the level of persecution required by the Convention, and the latter because the civil war in Sierra Leone was over, and there was no future risk from which she needed protection. Neither woman was a refugee according to the UK’s interpretation of the Convention, but they weren’t straightforward economic migrants either. One’s confidence in the asylum system is not increased when a former government adviser oversimplifies the issues involved in the way that Cavanagh does.

There cannot be ‘some kind of trade-off’: this is a matter of Britain’s legal obligations. As government policy stands – with off-shore controls preventing people from reaching the UK, and officials slapping visa requirements on nationals as soon as it becomes clear that large numbers will require protection (as in the cases of Colombia, Zimbabwe and Jamaica) – any trade-off is not favouring those Cavanagh calls ‘genuine refugees’. Next to nothing has been done to ensure that they are ‘given protection’. The government resettled only 60 of a promised 500 refugees in the first year of the Gateway Protection Scheme. It has ignored calls to fast-track those likely to be ‘genuine’ refugees and instead concentrated on increasing capacity to fast-track those it thinks unlikely to have well-founded claims. It has pumped money and effort into tweaking and tightening the appeal structure, rather than improving the shockingly bad standard of initial decisions.

Matt Cavanagh says that the number of applications for asylum in the UK has been reduced as a result of the government’s asylum policies (Letters, 31 March). The UNHCR, however, reports that the number of asylum seekers has fallen by 40 per cent since 2001 in fifty industrialised countries, and that the movement of refugees is in decline everywhere. While the number of asylum applicants entering the UK has fallen, the proportion granted refugee status has stayed more or less constant, showing that stricter border controls keep out those who are in need of protection as much as those who are not.

Cavanagh implies that I question whether ‘the current laws should be enforced’ at all. But my concern is rather with the proliferation of new laws that inflict arbitrary sanctions on asylum seekers, regardless of the status of their claim. I don’t think, for example, that officials are being ‘overzealous’ in their application of the new law which penalises asylum seekers who don’t have any travel documents when they’re first interviewed by the Immigration Service. I was criticising the law itself (rather than the way it is applied) because it designates as criminal something that is legitimate according to international refugee law.

It is worrying that Cavanagh, a former government adviser, accepts that the case studies I cite ‘remind us of the individual cost of changes in policy or its application’, yet continues to defend those policy changes. I suppose the man who was made homeless by a law that contravened the European Convention on Human Rights, or the survivor of torture who was locked up without adequate explanation by the Immigration Service and whose asylum claim was rejected twice in the face of compelling evidence to support it, are instances of Cavanagh’s ‘trade-off’ between protecting human rights and ‘eliminating abuse of the system’.

According to Cavanagh, ‘the government is ensuring taxpayers’ money is going to the people who are entitled to it.’ But last month a Refugee Survival Trust report, funded by Oxfam, found that ‘administrative errors and procedural delays within the National Asylum Support Service’ are a major cause of destitution among asylum seekers. If Cavanagh was really worried about taxpayers’ money, he wouldn’t support the arbitrary detention of increasing numbers of asylum seekers, a policy which is both expensive and unnecessary. Unjustly punitive policies and incompetent government agencies are the real waste of public resources.

Katharine Fletcher draws attention to the role of ‘incompetent government agencies’ in the application of punitive government policies (Letters, 5 May). As someone frequently called on to produce expert witness reports in regard to the claims of asylum seekers from Africa and the Middle East, I have noticed that Home Office case workers and adjudicators are overworked and often have very little time in which to prepare their cases. Melanie McFadyean, writing in the Guardian on 24 November 2004, quoted one adjudicator as saying that ‘typically … adjudicators get case papers at 10 a.m., hear appeals at 11 a.m., and then have only one day in which to consider four cases.’ Under these circumstances, they are obliged to rely on the Home Office Country Information Policy Unit (CIPU) reports. Often these are simply quoted verbatim, irrespective of their relevance or otherwise to the case in question.

Given this reliance on secondary material (few of the case officers or adjudicators appear to be familiar with the real conditions in the countries from which asylum seekers have fled), it is worrying that the CIPU reports are often woefully inadequate. In an analysis of a range of CIPU reports published in October last year, which Fletcher discussed in her original piece (LRB, 17 March), the Immigration Advisory Services (IAS) expressed ‘serious doubts’ about their validity. They also drew attention to the ‘particularly problematic’ use of ‘out-of-date material’. The government announced measures to improve the standard of country reports, but the effect of this remains to be seen. Furthermore, the number of reports has been reduced from 35 to 20. For the many other countries from which people seek asylum, there is no single up-to-date and accurate source of information for overburdened Home Office officials.

The lack of real knowledge or understanding of the conditions prevailing in many countries from which people are seeking asylum, combined with strong political pressure to reduce the number of those granted asylum, often results in crude and essentially punitive decisions. Many of these are then upheld, often in the face of strong contradictory evidence, resulting in unjust outcomes and in untold harm to those individuals who are sent back. Sometimes, these crude decisions, based on inadequate but ‘acceptable’ reports are, rightly, subject to appeal and further legal proceedings, all of which consume significant public resources. While some of these appeals are successful, of course many are not. But it is by no means clear that the eventual outcomes, taken as a whole, truly reflect the balance between cases where there are real risks of harm to the asylum seeker and those where the risks are limited. The frequent failure to determine the outcome of asylum cases on the basis of adequate, up-to-date information, carefully evaluated by an adjudicator with both the relevant expertise and the time to do the job properly, means that it is hard to argue with any confidence, as Matt Cavanagh does (Letters, 31 March), that ‘tax-payers’ money is going to the people who are entitled to it.’

Natasha Carver of the Immigration Advisory Service in Britain writes that ‘as soon as it becomes clear that large numbers will require protection (as in the cases of Colombia, Zimbabwe and Jamaica)’, United Kingdom officials impose visa requirements (Letters, 21 April). There is simply no basis for the suggestion that large numbers of Jamaican nationals are in need of refugee protection. Nor is there any basis for her uninformed speculation that Jamaican nationals ‘will require’ such protection in the future.

To be sure, Jamaica’s human rights record could be improved, and there are continuing efforts to achieve this. But, as far as the criteria for refugee protection are concerned, there is little scope for the view that individuals face persecution on grounds of their political or other opinions, membership of particular social groups, race, or other factors mentioned in the Refugees Convention and Protocol (to which Jamaica is a party). The number of Jamaican nationals who have sought refugee protection since the country’s independence over forty years ago does not, to my knowledge, enter double figures.

A.J. Nicholson
Attorney General and Minister of Justice Kingston, Jamaica